STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS REGULATION ) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )
)
Petitioner, )
)
vs. ) CASE NO. 83-1151
) JOHNNY W. ABNER d/b/a MANHATTAN ) RESTAURANT, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on April 21, 1983, in Sarasota, Florida. The parties were afforded leave through May 3, 1983, to submit proposed memoranda in support of their respective positions. 1/
APPEARANCES
For Petitioner: Harold F. X. Purnell, Esquire
General Counsel
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondent: R. John Cole, II, Esquire
Steves, Busch & Cole, P.A. 1605 Main Street, Suite 1110
Sarasota, Florida 33577
ISSUE
The issue posed for decision herein is whether or not the Respondent's alcoholic beverage license should be suspended, revoked, or otherwise disciplined based on the Petitioner's Notice to Show Cause filed herein dated April 13, 1983.
BACKGROUND
On April 13, 1983, the Division of Alcoholic Beverages and Tobacco (Division) issued a Notice to Show Cause why the Respondent's license should not be disciplined because of alleged sales and use of controlled substances while on the licensed premises of such establishment; that employees of the licensee engaged in a transaction in which allegedly stolen liquor was exchanged for controlled substances; and finally because of the sales and use of controlled substances on the licensed premises, the premises constituted a public nuisance.
At the hearing in this instant matter, the Division presented the testimony of Sarasota Police Department Sgt. Jim Fulton; Beverage Officer Keith Hamilton; Brenda Morton of the Florida Department of Law Enforcement (FDLE) crime laboratory; Mark Willingham, the Division District Supervisor; and Beverage Officer Ken Goodman.
The Respondent presented the testimony of Jeffery Dawson, bartender; Patrice Rivers, barmaid; Kenneth Davis, part-time handyman; James Bowens, bartender; Joel Harris, disc jockey; and Johnny Wilbur Abner, licensee, owner/operator.
Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, posthearing memoranda, and the entire record compiled herein, I hereby make the following:
FINDINGS OF FACT
The Manhattan Restaurant holds alcoholic beverage license No. 68-442 SRX, Series 4-COP, issued in the name of Johnny W. Abner. The premises are located at 1409 Ninth Street, Sarasota, Sarasota County, Florida.
Respondent's place of business is well known to the Intelligence Unit of the Sarasota Police Department as a place where sales of narcotics are conducted inside the premises. This information comes from confidential informants and intelligence reports submitted by officers working in the field. (Testimony of Keith Bernard Hamilton, State Beverage Officer; and James D. Fulton, Police Officer, City of Sarasota.)
Detective James D. Fulton works primarily in this area of town and is familiar with crimes against persons in narcotics dealing in the area of the Respondent's tavern.
Beverage Officer Keith Hamilton was assigned to an investigation of bars and restaurants in the area of Respondent's tavern during late March and early April, 1983. He is a qualified narcotics investigator and is familiar with the smell and appearance of marijuana and cocaine.
During the evening of March 22, 1983, Officer Hamilton entered the licensed premises and made contact with the on-duty disc jockey, Joel, and inquired of Joel as to the availability of marijuana. Joel advised that he could obtain some for Officer Hamilton and, upon being given $10, left the area. Joel returned in approximately 10 minutes and handed Officer Hamilton a yellow manila envelope containing a vegetable substance together with $4 in change.
The exchange was made openly without any attempt to hide. Officer Hamilton bagged, sealed, and receipted the substance given him by Joel, which was returned to the Sarasota district office and later submitted to the FDLE crime laboratory in Tampa for analysis. Analyst Brenda Norton determined that the substance purchased contained cannabis. At the hearing herein, Officer Hamilton identified the substance analyzed as that purchased by him from Joel. (Petitioner's Exhibit 1.)
Joel, during testimony in the instant proceeding, admitted that he made the purchase from an unidentified patron from Bradenton, Florida.
Officer Hamilton returned to the licensed premises of the Manhattan Restaurant on the evening of March 22, 1983, where he observed patrons smoking
marijuana. Officer Hamilton observed the unique manner in which the cigarette was rolled and the manner in which the patrons held and inhaled the smoke.
Based on the aroma of smoke that he smelled on that occasion, he concluded that it was marijuana that was being smoked by the patrons.
Officer Hamilton next returned to the licensed premises of the Manhattan Restaurant on the evening of March 23, 1983, at approximately 9:30
p.m. Again, Officer Hamilton made contact with the on-duty disc jockey, Joel, and inquired as to the availability of marijuana. Joel advised that he did not have marijuana for sale at this time, but did advise that he had some good "coke" for sale. Officer Hamilton handed Joel $10, and Joel left and shortly returned with a clear capsule containing a substance which was later analyzed by the FDLE crime laboratory. Analyst Morton determined that the capsule analyzed contained cocaine. At the hearing, Officer Hamilton identified the substance analyzed as that purchased by him on the evening of March 23, 1983. (Petitioner's Exhibit 3.)
Joel admitted to such sale and advised that he obtained the drug from a patron at the bar.
While at the bar and during the purchase of the cocaine capsule from Joel on March 23, 1983, Officer Hamilton observed the licensee, Johnny Abner, at the bar area of the licensed premises on that occasion.
Approximately one hour later, Officer Hamilton again made contact with Joel at the bar area at the Manhattan Restaurant and inquired as to the availability of marijuana. Joel advised that he had some available and told Officer Hamilton to wait for a moment. Joel returned and exchanged one manila envelope for $6. The transaction was carried out in an open manner, and the licensee, Abner, was observed at the time of the transaction at the bar area. The substance purchased by Officer Hamilton was bagged, sealed, receipted and returned to-the district office, which later submitted the substance to the FDLE crime laboratory in Tampa. Analyst Morton determined that the substance analyzed contained cannabis. (Petitioner's Exhibit 2.)
Joel admitted to purchasing the marijuana for Officer Hamilton from another patron at the licensed premises whom he knew sold drugs.
On that occasion, Officer Hamilton again observed patrons passing what, from his experience, were marijuana cigarettes. The patrons were located in the pool table area, and their actions were observable from the bar.
On the afternoon of March 24, 1983, Officer Hamilton discussed with Joel trading liquor which Officer Hamilton represented was stolen from an ABC liquor truck to licensee Abner for marijuana. Joel advised that he would check with Abner as to whether he wanted to make a trade and asked Officer Hamilton to check back with him that evening. As requested, Officer Hamilton returned to the licensed premises of the Manhattan Restaurant at approximately 7:40 p.m. on the evening of March 24. Officer Hamilton made contact with Joel, who advised that Abner had agreed to the trade. Joel and Hamilton thereafter unloaded two cases of allegedly stolen liquor into the back of a red and white Ford van bearing license No. BP8575, which is registered to the licensee, Abner. The transfer was made in the parking lot of the licensed premises pursuant to what Joel represented were instructions from Abner to put it in the truck.
Joel thereafter advised Officer Hamilton to check back with him in approximately one hour since licensee Abner had sent someone to get the
marijuana. Officer Hamilton returned to the Manhattan Restaurant at approximately 10:00 p.m. and made contact with Joel. Joel advised that Abner had not yet sent anyone for the marijuana, and during the course of that discussion, Joel advised that Abner, when he buys such property, frequently tries these tactics to get the price as low as possible. Joel, however, advised that he would seek to the get the best price for him. During his stay, Officer Hamilton observed Joel and licensee Abner having a discussion and later an exchange of currency. Thereafter, Joel advised Officer Hamilton that Abner had given him the money, and Joel procured from a patron on the licensed premises approximately one-half ounce of a vegetable substance. Officer Hamilton bagged, sealed, and receipted the substance given him by Joel, returned it to the district office, which later submitted it to the FDLE crime laboratory in Tampa. The substance was analyzed by analyst Brenda Morton and was found to contain cannabis. (Petitioner's Exhibit 4.)
At the time of the service of th& Emergency Order of Suspension, April 13, 1983, Officer Goodman found two 1.75 liter bottles of Popov Vodka in the bar area of the Manhattan Restaurant where other liquor for sale to customers was kept. These liquor bottles had previously been marked by Officer Ken Goodman as part of the quantity represented to be stolen and traded to Joel by Officer Hamilton in exchange for the marijuana. (Petitioner's Exhibits 6 and 7.) 2/
Officer Hamilton remarked to licensee Abner that he could "get him the same deal again."
Jeffery Dawson, a bartender employed at the Manhattan Restaurant, has been given instructions by licensee Abner regarding certain prohibited acts, including the carrying of
weapons and the use of drugs in the licensed premises. Dawson has also heard the disc jockey (D.J.) announce that no drugs or firearms were to be used or carried in the licensed premises.
Patrice Rivers, a barmaid employed at the Manhattan Restaurant since approximately March, 1983, was told, at the time of her employment, by licensee Abner that there were to be no drugs or firearms carried or used by customers in the licensed premises. Employee Rivers has observed signs outside and inside the building prohibiting drug use in the licensed premises.
Kenneth Davis, a part-time handyman employed at the Manhattan Restaurant, assisted licensee Abner in making liquor purchases from distributors and, on occasion, from the ABC Liquor Lounge in Sarasota, Florida. Davis has observed several employees using licensee Abner's van. Employee Davis has listened to both the disc jockey and licensee Abner use the P.A. system to announce that there were to be no drugs consumed in the licensed premises.
Employee Davis heard the conversation between Joel and licensee Abner regarding the exchange of the allegedly stolen liquor for drugs. Initially, Joel asked licensee Abner for $80 to purchase the allegedly stolen liquor. Licensee Abner refused, whereupon Joel returned for the second time and requested $60 to purchase the allegedly stolen liquor. Again, licensee Abner refused and, the third time, Joel requested $40 to purchase the liquor. Again, licensee Abner refused and, at that time, Joel asked to borrow $40 until he received his paycheck the following week. Licensee Abner loaned Joel the $40, and the exchange was made between Officer Hamilton and Joel outside the licensed premises.
Later that evening, Joel asked the bartender to keep two bottles of Popov Vodka behind the bar. According to Davis, Smirnoff is the vodka principally sold by the licensee.
Davis refers to licensee Abner as "Buddy." Joel asked Buddy to use the van to take the liquor home that he had purchased from Officer Hamilton.
James Bowen, a bartender employed full-time at the Manhattan Restaurant, has been so employed since the club's inception approximately eight years ago. As part of his duties, bartender Bowen stops fights, serves drinks, and attempts to prohibit the use of drugs inside the licensed premises.
Bartender Bowen kept two bottles of Popov Vodka for Joel behind the bar area.
Joel Harris, a disc jockey employed full-time at the Manhattan Restaurant since approximately 1980, is familiar with Officer Hamilton.
Joel met Officer Hamilton approximately four weeks prior to April 13, 1983, when he was introduced by another friend. Officer Hamilton asked Joel if he could assist him in getting some "girl." 3/
Joel admits to purchasing marijuana and cocaine for Officer Hamilton and confidential informant Sutton.
Although Joel admits to purchasing marijuana and cocaine for Officer Hamilton, he insists that licensee Abner was unaware of such purchases and that they were not made in licensee Abner's presence. Further, Joel contends that when offered the exchange for the stolen liquor by Officer Hamilton, licensee Abner refused to purchase the allegedly stolen liquor and would not assist him in the purchase of same despite his attempts to do so on at least three occasions.
Joel borrowed licensee Abner's van to transport the allegedly stolen liquor from the licensed premises to his apartment where he was to later have a party.
Joel admits to having made a mistake in purchasing the allegedly stolen liquor and purchasing drugs for Officer Hamilton on the licensed premises; however, he states that licensee Abner should not be held responsible for his acts and/or conduct.
Joel has been arrested and charged for the felony sale of a controlled substance to Officer Hamilton.
Johnny Wilbur Abner, the licensee, is the owner/operator of the Manhattan Restaurant. Licensee Abner has operated the Manhattan Restaurant for approximately eight years.
Licensee Abner has a policy of no drugs or loitering in his premises, and he further enforces a no loitering policy in the parking lot of his premises. Licensee Abner enforces that policy with and through his employees. Licensee Abner has evicted a number of patrons from the Manhattan Restaurant and recalled having done so as frequently as three (3) times each week.
Additionally, licensee Abner has a policy to avoid dealing in stolen property entirely. He has not knowingly purchased any stolen liquor, nor has he been introduced to Officer Hamilton prior to the subject incident.
Licensee Abner loans Joel money on a regular basis.
Licensee Abner offered no explanation as to how the Popov Vodka got to his place, inasmuch as he does not sell Popov Vodka.
Division Director Willingham's examination of the inventory taken when the Emergency Suspension and Notice to Show Cause were served upon the Respondent on April 13, 1983, revealed that there were, inter alia, four 1.75 liters of Popov liquor on the licensed premises on that date and that, in addition, there were two other bottles of Popov liquor which were seized by beverage agents during the serving of the Emergency Suspension Order.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes (1981).
The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.
The authority of the Division of Alcoholic Beverages and Tobacco is derived from Chapter 561, Florida Statutes (1981). The Manhattan Restaurant, holder of alcoholic beverage license No. 68-442 SRX, Series 4-COP, issued in the name of Johnny W. Abner, is subject to the disciplinary guides of Chapter 561, Florida Statutes (1981).
A showing of isolated violations combined with a showing that the licensee otherwise took pains to obey the law would not normally support a revocation petition. However, evidence of repeated and flagrant violations by a licensee, and/or its employees, creates an inference that the violations were either fostered, condoned, or negligently overlooked by the licensee. See, for example, Pauline v. Lee, 147 So.2d 359 (2 DCA Fla. 1962); Lash, Inc. v. State Department of Business Regulation, 411 So.2d 276 (3 DCA Fla. 1982) . Based thereon, simple negligence is a standard which may be applied to the revocation of a beverage license. See Bach v. Florida State Board of Dentistry, 378 So.2d
34 (1 DCA Fla. 1979). In that regard, a licensee has the obligation of maintaining sufficient intelligence with regard to his establishment so as to know, at least generally, what his employees are doing, and his failure to do so constitutes a lack of reasonable diligence and a failure of proper management. G & B of Jacksonville, Inc. v. State Department of Business Regulation, 371 So.2d 138 (1 DCA Fla. 1979).
On March 22 and 23, 1983, Respondent, Johnny Wilbur Abner, d/b/a Manhattan Restaurant, violated Florida Statute 561.29(1)(a) by allowing its employee, Joel, commit felony sales of marijuana twice on March 22 and 23, 1983, in violation of Section 893.13, Florida Statutes (1981).
On March 23, 1983, Respondent, Johnny Wilbur Abner, d/b/a Manhattan Restaurant, violated Section 561.29(1)(a), Florida Statutes, by allowing its employee, Joel, commit felony sales of cocaine to Beverage Officer Keith Hamilton in the licensed premises in violation of Section 893.13, Florida Statutes (1981).
Section 893.13(1)(a)2, Florida Statutes (1981) states:
893.13 Prohibited acts; penalties.-- (1)(a) .
2. A controlled substance named
or described in s. 893.03(1)(c) , (2)(c) (3), or (4) is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
Officer Hamilton's testimony which is credited herein clearly establishes that the sales took place as alleged, as well as the fact that the place was resorted to by persons both using and selling controlled substances, marijuana and cocaine, as alleged in Allegations 1, 2, and 3 of the Notice to Show Cause filed herein dated April 13, 1983.
On March 24, 1983, Respondent, Johnny Wilbur Abner, d/b/a Manhattan Restaurant, violated Florida Statutes Section 561.29(1)(a) and Florida Statute 812.019(1),by and through its employee, Joel, by endeavoring to traffic in property reported to be stolen (liquor) and/or did violate Florida Statute
893.13 within Florida Statute 561.29(1)(a), viz, the sale or delivery of a felony amount of marijuana to Beverage Officer Keith Hamilton in return for property reported to be stolen. In this regard, consideration was given to Respondent's averment that he endeavored to refrain from the purchase of stolen property and Respondent's stated policy respecting his policy and efforts to avoid either the use of drugs and/or dealing in stolen property in and about the licensed premises. However, the Respondent, by loaning his employee Joel funds after his repeated efforts to effect the exchange described herein should have been sufficient conduct to-alert the Respondent that Joel was endeavoring to traffic in property known or reported to be stolen. I shall therefore find the Respondent responsible for such acts and/or conduct on behalf of its employee.
On April 9, 1983, Respondent, Johnny Wilbur Abner, d/b/a Manhattan Restaurant, violated Section 561.29(1)(a) by allowing its employee, Joel, to commit felony sales or delivery of cocaine to Beverage Officer Keith Hamilton in the licensed premises in violation of Section 893.13, Florida Statutes (1981).
Respondent, Johnny Wilbur Abner, d/b/a Manhattan Restaurant, between March 21, 1983, and April 9, 1983, maintained the licensed premises as a place resorted to by persons using controlled substances in violation of Chapter 893, Florida Statutes, or for the purpose of using said substances, or which is used for keeping or selling the same in violation of Chapter 893, Florida Statutes, and Section 561.29(1)(a). Based thereon, Respondent maintained a public nuisance on the licensed premises in violation of Florida Statutes 823.10, 823.01, 561.29(1)(c) and 561.29(1)(a)
Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED:
That Respondent's alcoholic beverage license No. 68-442 SRX, Series 4-COP, be suspended for a period of ninety (90) days and that it pay a fine of $100 for
each of seven (7) violations alleged in the Notice to Show Cause filed herein dated April 13, 1983.
RECOMMENDED this 24th day of June, 1983, in Tallahassee, Florida.
JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1983.
ENDNOTES
1/ Counsel for the parties have filed proposed memoranda which were considered by me in preparation of this Recommended Order. To the extent that the proposed findings, etc., are not incorporated in this Recommended Order, they were deemed either irrelevant, immaterial, or not otherwise supported by record evidence.
2/ Petitioner's Exhibits 6 and 7 were offered and were withdrawn and retained in the custody of the district supervisor in the Sarasota district office.
3/ The word "girl" is a street name for cocaine.
COPIES FURNISHED:
Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
John Cole, II, Esquire Steves, Busch & Cole, P.A. Suite 1110 1605 Main Street Sarasota, Florida 33577
Mr. Howard M. Rasmussen Director
Division of Alcoholic Beverages and Tobacco
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Mr. Gary R. Rutledge Secretary
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION
DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO
DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO,
Petitioner,
vs. CASE NO. 83-1151
JOHNNY W. ABNER d/b/a MANHATTAN RESTAURANT,
Respondent.
/
FINAL ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on April 21, 1983, in Sarasota, Florida. The parties were afforded leave through May 3, 1983, to submit proposed memoranda in support of their respective positions.
APPEARANCES
For Petitioner: Harold F. X. Purnell, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondent: R. John Cole, II, Esquire
Steves, Busch & Cole, P.A. 1605 Main Street, Suite 1110
Sarasota, Florida 33577 ISSUE
The issue posed for decision herein is whether or not the Respondent's alcoholic beverage license should be suspended, revoked, or otherwise disciplined based on the Petitioner's Notice to Show Cause filed herein dated April 13, 1983.
BACKGROUND
On April 13, 1983, the Division of Alcoholic Beverages and Tobacco (Division) issued a Notice to Show Cause why the Respondent's license should not be disciplined because of alleged sales and use of controlled substances while on the licensed premises of such establishment; that employees of the licensee engaged in a transaction in which allegedly stolen liquor was exchanged for controlled substances; and finally because of the sales and use of controlled substances on the licensed premises, the premises constituted a public nuisance.
At the hearing in this instant matter, the Division presented the testimony of Sarasota Police Department Sgt. Jim Fulton; Beverage Officer Keith Hamilton; Brenda Morton of the Florida Department of Law Enforcement (FDLE) crime laboratory; Mark Willingham, the Division District Supervisor; and Beverage Officer Ken Goodman.
The Respondent presented the testimony of Jeffery Dawson, bartender; Patrice Rivers, barmaid; Kenneth Davis, part-time handyman; James Bowens, bartender; Joel Harris, disc jockey; and Johnny Wilbur Abner, licensee, owner/operator.
FINDINGS OF FACT
The Manhattan Restaurant holds alcoholic beverage license No. 68-442 SRX, Series 4-COP, issued in the name of Johnny W. Abner. The premises are located at 1409 Ninth Street, Sarasota, Sarasota County, Florida.
Respondent's place of business is well known to the Intelligence Unit of the Sarasota Police Department as a place where sales of narcotics are conducted inside the premises. This information comes from confidential informants and intelligence reports submitted by officers working in the field. (Testimony of Keith Bernard Hamilton, State Beverage Officer; and James D. Fulton, Police Officer, City of Sarasota.) Detective James D. Fulton works primarily in this area of town and is familiar with crimes against persons in narcotics dealing in the area of the Respondent's tavern.
Beverage Officer Keith Hamilton was assigned to an investigation of bars and restaurants in the area of Respondent's tavern during late March and early April 1983. He is a qualified narcotics investigator and is familiar with the smell and appearance of marijuana and cocaine.
During the evening of March 22, 1983, Officer Hamilton entered the licensed premises and made contract with the on-duty disc jockey, Joel, and inquired of Joel as to the availability of marijuana. Joel advised that he could obtain some for Officer Hamilton and, upon being give $10, left the area. Joel returned in approximately 10 minutes and handed Officer Hamilton a yellow manila envelope containing a vegetable substance together with $4 in change. The exchange was made openly without any attempt to hide. Officer Hamilton bagged, sealed, and receipted the substance given him by Joel, which was returned to the Sarasota district office and later submitted to the FDLE crime laboratory in Tampa for analysis. Analyst Brenda Morton determined that the substance purchased contained cannabis. At the hearing herein, Officer Hamilton identified the substance analyzed as that purchased by him from Joel (Petitioner's Exhibit 1.)
Joel, during testimony in the instant proceeding, admitted that he made the purchase from an unidentified patron from Bradenton, Florida.
Officer Hamilton returned to the licensed premises of the Manhattan Restaurant on the evening of March 22, 1983, where he observed patrons smoking marijuana. Officer Hamilton observed the unique manner in which the cigarette was rolled and the manner in which the patrons held and inhaled the smoke.
Based on the aroma of smoke that he smelled on that occasion, he concluded that it was marijuana that was being smoked by the patrons.
Officer Hamilton next returned to the licensed premises of the Manhattan Restaurant on the evening of March 23, 1983, at approximately 9:30 p.m. Again, Officer Hamilton made contact with the on-duty disc jockey, Joel, and inquired as to the availability of marijuana. Joel advised that he did not have marijuana for sale at this time, but did advise that he had some good "coke" for sale. Officer Hamilton handed Joel $10, and Joel Left and shortly returned with a clear capsule contained a substance which was later analyzed by the FDLE crime laboratory. Analyst Morton determined that the capsule analyzed contained cocaine. At the hearing, Officer Hamilton identified the substance analyzed as that purchased by him on the evening of March 23, 1983. (Petitioner's Exhibit 3.)
Joel admitted to such sale and advised that he obtained the drug from a patron at the bar.
While at the bar and during the purchase of the cocaine capsule from Joel on March 23, 1983, Officer Hamilton observed the licensee, Johnny Abner, at the bar area of the licensed premises on that occasion.
Approximately one hour later, Officer Hamilton again made contact with Joel at the bar area at the Manhattan Restaurant and inquired as to the availability of marijuana. Joel advised that he had some available and told Officer Hamilton to wait for a moment. Joel returned and exchanged one manila envelope for $6.
The transaction was carried out in an open manner, and the licensee, Abner, was observed at the time of the transaction at the bar area. The substance purchased by Officer Hamilton was bagged, sealed, receipted and returned to the district office, which later submitted the substance to the FDLE crime laboratory in Tampa. Analyst Morton determined that the substance analyzed contained cannabis. (Petitioner's Exhibit 2.)
Joel admitted to purchasing the marijuana for Officer Hamilton from another patron at the licensed premises whom he knew sold drugs.
On that occasion, Officer Hamilton again observed patrons passing what, from his experience, were marijuana cigarettes. The patrons were located in the pool table area, and their actions were observable from the bar.
On the afternoon of March 24, 1983, Officer Hamilton discussed with Joel trading liquor which Officer Hamilton represented was stolen from an ABC liquor truck to licensee Abner for marijuana. Joel advised that he would check with Abner as to whether he wanted to make a trade and asked Officer Hamilton to check back with him that evening. As requested, Officer Hamilton returned to the licensed premises of the Manhattan Restaurant at approximately 7:40 p.m. on the evening of March 24. Officer Hamilton made contact with Joel, who advised that Abner had agreed to the trade. Joel and Hamilton thereafter unloaded two cases of allegedly stolen liquor into the back of a red and white Ford van bearing license No. BP8575, which is registered to the licensee, Abner. The transfer was made in the parking lot of the licensed premises pursuant to what Joel represented were instructions from Abner to put it in the truck.
Joel thereafter advised Officer Hamilton to check back with him in approximately one hour since licensee Abner had sent someone to get the marijuana. Officer Hamilton returned to the Manhattan Restaurant at approximately 10:00 p.m. and made contact with Joe. Joel advised that Abner had not yet sent anyone for the marijuana, and during the course of that discussion, Joel advised that Abner, when he buys such property, frequently tries these tactics to get the price as low as possible. Joel, however, advised that he would seek to get the best price for him. During his stay, Officer Hamilton observed Joel and licensee Abner having a discussion and later an exchange of currency. Thereafter, Joel advised Officer Hamilton that Abner had given him the money, and Joel procured from a patron on the licensed premises approximately one-half once of a vegetable substance. Officer Hamilton bagged, sealed, and receipted the substance given him by Joel, returned it to the district office, which later submitted it to the FDLE crime laboratory in Tampa. The substance was analyzed by analyst Brenda Morton and was found to contain cannabis. (Petitioner's Exhibit 4.)
At the time of the service of the Emergency Order of Suspension, April 13, 1983, Officer Goodman found two 1.75 liter bottles of Popov Vodka in the bar area of the Manhattan Restaurant where other liquor for sale to customers was kept. These liquor bottles had previously been marked by Officer Ken Goodman as part of the quantity represented to be stolen and traded to Joel by Officer Hamilton in exchange for the marijuana. (Petitioner's Exhibits 6 and 7.)
Officer Hamilton remarked to licensee Abner that he could "get him the same deal again."
Jeffery Dawson, a bartender employed at the Manhattan Restaurant, has been given instructions by licensee Abner regarding certain prohibited acts, including the carrying of weapons and the use of drugs in the licensed premises. Dawson has also heard the disc jockey (D.J.) announce that no drugs or firearms were to be used or carried in the licensed premises.
Kenneth Davis, a part-time handyman employed at the Manhattan Restaurant, assisted licensee Abner in making liquor purchases from distributors and, on occasion, from the ABC Liquor Lounge in Sarasota, Florida. Davis has observed several employees using licensee Abner's van. Employee Davis has listened to both the disc jockey and licensee Abner use the P.A. system to announce that there were to be no drugs consumed in the licensed premises.
Employee Davis heard the conversation between Joel and licensee Abner regarding the exchange of the allegedly stolen liquor for drugs. Initially, Joel asked licensee Abner for $80 to purchase the allegedly stolen liquor.
Licensee Abner refused, whereupon Joel returned for the second time and requested $60 to purchase the allegedly stolen liquor. Again, licensee Abner refused and, the third time, Joel requested $40 to purchase the liquor. Again, licensee Abner refused and, at that time, Joel asked to borrow $40 until he received his paycheck the following week. Licensee Abner loaned Joel the $40, and the exchange was made between Officer Hamilton and Joel outside the licensed premises.
Later that evening, Joel asked the bartender to keep two bottles of Popov Vodka behind the bar. According to Davis, Smirnoff is the (only) vodka sold by the licensee. (The bracketed portion has been substituted for the Hearing Officer's finding, which is rejected as not supported by the record - see p. 107 and 194.)
Davis refers to licensee Abner as "Buddy." Joel asked Buddy to use the van to take the liquor home that he had purchased from Officer Hamilton.
James Bowen, a bartender employed full-time at the Manhattan Restaurant, has been so employed since the club's inception approximately eight years ago. As part of his duties, bartender Bowen stops fights, serves drinks, and attempts to prohibit the use of drugs inside the licensed premises.
Bartender Bowen kept two bottles of Popov Vodka for Joel behind the bar area.
Joel Harris, a disc jockey employed full-time at the Manhattan Restaurant since approximately 1980, is familiar with Officer Hamilton.
Joel met Officer Hamilton approximately four weeks prior to April 13, 1983, when he was introduced by another friend. Officer Hamilton asked Joel if he could assist him in getting some "girl," a street name for cocaine.
Joel admits to purchasing marijuana and cocaine for Officer Hamilton and confidential informant Sutton.
Although Joel admits to purchasing marijuana and cocaine for Officer Hamilton, he insists that licensee Abner was unaware of such purchases and that they were not made in licensee Abner's presence. Further, Joel contends that when offered the exchange for the stolen liquor by Officer Hamilton, licensee Abner refused to purchase the allegedly stolen liquor and would not assist him in the purchase of some despite his attempts to do so on at least three occasions.
Joel borrowed licensee Abner's van to transport the allegedly stolen liquor from the licensed premises to his apartment where he was to later have a party.
Joel admits to having made a mistake in purchasing the allegedly stolen liquor and purchasing drugs for Officer Hamilton on the licensed premises; however, he states that licensee Abner should not be held responsible for his acts and/or conduct.
Joel has been arrested and charged for the felony sale of a controlled substance to Officer Hamilton.
Johnny Wilbur Abner, the licensee, is the owner/operator of the Manhattan Restaurant. Licensee Abner has operated the Manhattan Restaurant for approximately eight years.
Licensee Abner has a policy of no drugs or loitering in his premises, and he further enforces a no loitering policy in the parking lot of his premises. Licensee Abner enforces that policy with and through his employees. Licensee Abner has evicted a number of patrons from the Manhattan Restaurant and recalled having done so as frequently as three (3) times each week.
Additionally, licensee Abner has a policy to avoid dealing in stolen property entirely. He has not knowingly purchased any stolen liquor, nor has he been introduced to Officer Hamilton prior to the subject incident.
Licensee Abner loans Joel money on a regular basis.
Licensee Abner (who insists that he sells only Smirnoff vodka and no other brand), offered no explanation as to how (substantial quantities of) Popov Vodka (and Fleischman's vodka) got to his place, inasmuch as he does not sell (them). (The bracketed portions were added by the Division and are supported by the record - see pp. 194, 198 and 199.)
Division Director Willingham's examination of the inventory taken when the Emergency Suspension and Notice to Show Cause were served upon the Respondent on April 13, 1983, revealed that there were, inter alia, four 1.75 liters of Popov liquor on the licensed premises on that date and that, in addition, there were two other bottles of Popov liquor which were seized by beverage agents during the serving of the Emergency Suspension Order (as well as six 1.75 liter bottles of the Fleischman's vodka including an open bottle at the serving area of the bar). (The bracketed section was added by the Division and is supported by the record - pp. 198-201.)
CONCLUSIONS OF LAW
The Division of Administrative Hearing has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes (1981).
The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.
The authority of the Division of Alcoholic Beverages and Tobacco is derived from Chapter 561, Florida Statutes (1981). The Manhattan Restaurant, holder of alcoholic beverage license No. 68-442 SRX, Series 4-COP, issued in the name of Johnny W. Abner, is subject to the disciplinary guides of Chapter 561, Florida Statutes (1981).
A showing of isolated violations combined with a showing that the licensee otherwise took pains to obey the law would not normally support a revocation petition. However, evidence of repeated and flagrant violations by a licensee, and/or its employees, creates an inference that the violations were either fostered, condoned, or negligently overlooked by the licensee. See, for example, Pauline v. Lee, 147 So.2d 359 (2 DCA Fla. 1962); Lash, Inc. v. State Department of Business Regulation, 411 So.2d 276 (3 DCA Fla. 1982). Based thereon, simple negligence is a standard which may be applied to the revocation of a beverage license. See Bach v. Florida State Board of Dentistry, 378 So.2d
34 (1 DCA Fla. 1979). In that regard, a licensee has the obligation of maintaining sufficient intelligence with regard to his establishment so as to know, at least generally, what is employees are doing, and his failure to do so constitutes a lack of reasonable diligence and a failure of proper management. G & B of Jacksonville, Inc. v. State Department of Business Regulation, 371 So.2d 138 (1 DCA Fla. 1979).
On March 22 and 23, 1983, Respondent, Johnny Wilbur Abner, d/b/a Manhattan Restaurant, violated Florida Statute 561.29(1)(a) by and through his employee Joel's felony sales of marijuana on March 22 and 23, 1983, in violation of Section 893.13, Florida Statutes (1981).
On March 23, 1983, Respondent, Johnny Wilbur Abner, d/b/a Manhattan Restaurant, violated Section 561.29(1)(a), Florida Statutes, by and through his employee, Joel's felony sales of cocaine to Beverage Officer Keith Hamilton in the licensed premises in violation of Section 893.13, Florida Statutes (1981).
Section 893.13(1)(a)2, Florida Statutes (1981), states:
893.13 Prohibited acts; penalties.-- (1)(a) . . .
* * *
2. A controlled substance named or described in s. 893.03(1)(c), (2)(c), (3), or
(4) is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
Officer Hamilton's testimony which is credited herein clearly establishes that the sales took place as alleged, as well as the fact that the place was resorted to by persons both using and selling controlled substances, marijuana and cocaine, as alleged in Allegations 1, 2, and 3 of the Notice to Show Cause filed herein dated April 13, 1983.
On March 24, 1983, Respondent, Johnny Wilbur Abner, d/b/a Manhattan Restaurant, violated Florida Statutes Section 561.29(1)(a) and Florida Statute 812.019(1), by and through his employee, Joel, by endeavoring to traffic in property reported to be stolen (liquor) and/or did violate Florida Statute
893.13 within Florida Statute 561.29(1)(a), viz, the sale or delivery of a felony amount of marijuana to Beverage Officer Keith Hamilton in return for property reported to be stolen. In this regard, consideration was given to Respondent's averment that he endeavored to refrain from the purchase of stolen property and Respondent's stated policy respecting his policy and efforts to avoid either the use of drugs and/or dealing in stolen property in and about the licensed premises. However, the Respondent, by loaning his employee Joel funds after his repeated efforts to effect the exchange described herein should have been sufficient conduct to alert the Respondent that Joel was endeavoring to traffic in property known or reported to be stolen. It is therefore found that Respondent was negligent and thus culpably responsible for such acts and/or conduct on behalf of his employee.
On April 9, 1983, Respondent, Johnny Wilbur Abner, d/b/a Manhattan Restaurant, violated Section 561.29(1)(a) by and through is employee Joel's felony sales or delivery of cocaine to Beverage Officer Keith Hamilton in the licensed premises in violation of Section 893.13, Florida Statutes (1981).
Respondent, Johnny Wilbur Abner, d/b/a Manhattan Restaurant, between March 21, 1983, and April 9, 1983, maintained the licensed premises as a place resorted to by persons using controlled substances in violation of Chapter 893, Florida Statutes, or for the purpose of using said substances, or which is used for keeping or selling the same in violation of Chapter 893, Florida Statutes, and Section 561.29(1)(a). Based thereon, Respondent maintained a public nuisance on the licensed premises in violation of Florida Statutes 823.10, 823.01, 561.29(1)(c), and 561.29(1)(a).
ORDER
Based on the foregoing Findings of Fact and Conclusions of Law, and a complete review of the record, it is hereby
ORDERED:
That Respondent's alcoholic beverage license No. 68-442 SRX, Series 4-COP, be and the same is hereby revoked.
ORDERED this 2nd day of September, 1983, in Tallahassee, Florida.
Howard M. Rasmussen, Director Division of Alcoholic Beverages
and Tobacco
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
COPIES FURNISHED:
Harold F. X. Purnell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
R. John Cole, II, Esquire Steves, Busch & Cole, P.A. Suite 1110 - 1605 Main Street Sarasota, Florida 33577
James E. Bradwell, Esquire Hearing Officer
Division of Administrative Hearings Department of Administration
2009 Apalachee Parkway
Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Sep. 07, 1983 | Final Order filed. |
| Jun. 24, 1983 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 02, 1983 | Agency Final Order | |
| Jun. 24, 1983 | Recommended Order | Respondent repeatedly allowed employee to sell drugs at bar. License should be suspended and fined. |
